JUDGMENT :

Heard Mr. B. C. Das, the learned Senior counsel assisted by Mr. S. Nath, the learned counsel appearing on behalf of the petitioners and Mr. P. Nayak, the learned Standing counsel appearing on behalf of the Public Works Department (for short “the PWD”). I have also heard Mr. P. P. Dutta, the learned Standing counsel appearing on behalf of the Assam Public Service Commission (for short “the APSC”) and Ms. M. D. Borah, the learned Standing counsel appearing on behalf of the Pension and Public Grievances Department, Government of Assam.

2. Both the writ petitions are taken up together as the facts are similar and the questions of law involved are paramateria. The issue involved in both the writ petitions is as to whether the petitioners herein would be entitled to the Old Pension Scheme i.e. the pension in terms with the Assam Services (Pension) Rules, 1969 (for short “the Rules of 1969”) or the New Pension Scheme i.e. the New Defined Contributory Pension Scheme, 2009 which was brought into effect from 01.02.2005 by way of an Office Memorandum dated 06.10.2009.

3. The facts involved in the instant case are that the Public Works Department of the Government of Assam vide a letter bearing No.RBEB120/2002/1 dated 21.05.2002 requested the A.P.S.C. to initiate a selection process for filling up of 100 Nos. of vacancies of Junior Engineer (Civil) under PWD. The 100 vacancies consisted of 80 vacancies in the PWD Roadwing and 20 vacancies in the PWD Building wing. On the basis of the said requisition so made on 21.05.2002, the APSC issued an advertisement vide letter No.83/PSC/DR/5/1/2000-2001 dated 29.05.2002 for 100 Nos. of Junior Engineer (Civil) posts. The said advertisement was published on 05.06.2002.

4. It is also pertinent herein to note that pursuant to the advertisement, the PWD further requested the APSC vide a communication No.RBEB120/2002/15 dated 09.09.2003 for initiating a selection process of another 8 (eight) Nos. of J.E.(C) post under Roadwing along with 80 Nos. of J.E.(C) post under Roadwing.

5. The APSC conducted the selection and submitted select list of candidates for appointment in order of preference. The said select list/lists is/are not a part of the record but from the appointment order dated 30.10.2014, it reveals that the recommendation was made vide three separate communications i.e. letters dated 13.01.2004, 19.01.2004 and 21.01.2004. This aspect of the matter would be dealt with in detail at the later stage of the judgment. Thereupon, on the basis of the recommendations, the PWD appointed 103 Nos. of Junior Engineer (Civil) and 5 Junior Engineer (Mechanical) on the basis of an appointment order bearing No.RBEB.120/2002/65 dated 30.10.2004.

6. Before further proceeding in respect to the entitlement of the petitioners, this Court finds it relevant to take note of certain developments as regards the pension schemes which took place immediately after the order dated 30.10.2004. In the year 2004, the Central Government launched the New Pension Contributory Scheme. At that relevant point of time, on account of huge pension liability of the State of Assam which was rising exponentially, the Government of Assam took a policy decision to formulate a similar contributory pension scheme applicable to the future State Government employees who joined the services and posts in connection with the affairs of the State Government on or after 01.02.2005. In view of the said policy decision, the Commissioner and Secretary to the Government of Assam, Finance Department had issued a circular on 25.01.2005 wherein it was mentioned that in view of the decision of the Government of Assam to have a Contributory Pension Scheme applicable in future to the State Government employees who joined the services of the State Government on or after 01.02.2005, it was mandatory to mention in all advertisements for filling up of vaca